Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tolen v. Norman

United States District Court, E.D. Missouri, Eastern Division

March 26, 2019

ERIC TOLEN, Petitioner,
v.
JEFF NORMAN, Defendant.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE

         Petitioner Eric Tolen moves a second time under Rule 60(b) for relief from judgment concerning my order denying his § 2255 petition for habeas corpus relief. Tolen argues that his trial counsel was ineffective for failing to make a Brady violation claim and that post-conviction counsel was ineffective for failing to include that underlying ineffective assistance of counsel claim in an amended Missouri Supreme Court Rule 29.15 motion. Tolen's trial counsel appropriately raised a Brady violation claim as a Fourteenth Amendment Due Process violation. As a result, Tolen cannot establish that he has a substantial ineffective assistance of counsel claim, and I must deny his motion for relief from judgment.

         BACKGROUND

         On November 7, 2008, Tolen was convicted by a jury of thirty-six counts of statutory sodomy and one count of witness tampering, receiving a sentence of sixty-five years imprisonment. Tolen filed a direct appeal to the Missouri Court of Appeals, which affirmed his conviction and sentence on December 22, 2009. Tolen v. Missouri, 304 S.W.3d 229 (Mo.Ct.App. 2009). The Missouri Supreme Court denied Tolen's application for transfer on March 23, 2010. Tolen filed a petition for writ of certiorari before the United States Supreme Court, which was denied. Tolen v. Missouri, 562 U.S. 861 (2010). Tolen then filed a Motion to Vacate, Set Aside, or Correct the Judgment and Sentence under Missouri Supreme Court Rule 29.15, which was denied by the Missouri Court of Appeals on March 26, 2013. Tolen v. Missouri, No. ED 98414, 2013 WL 1209100 (Mo.Ct.App. 2013).

         Tolen argues that, at trial, the prosecutors committed a Brady violation by failing to timely return two boxes and an audiotape that allegedly contained Tolen's “work product” and exculpatory recantations. Tolen's trial counsel raised a Fourteenth Amendment Due Process argument concerning these materials in a motion to dismiss eight counts related to these materials. (See ECF No. 84 at n.1, 10-12). Tolen argues, however, that his trial counsel did not specifically raise a Brady violation, and that his post-conviction, Rule 29.15 counsel failed to include, at his direction, an ineffective assistance of counsel claim pertaining to the underlying Brady violation.

         On October 26, 2010, Tolen filed his petition for habeas relief under 28 U.S.C. § 2254, in the above-captioned case, including his Brady violation claim. [No. 3]. On June 18, 2014, I issued a Memorandum and Order that denied Tolen's habeas petition. [No. 47]. I found that Tolen's Fourth Amendment claims concerning the two boxes described above were barred from review pursuant to Stone v. Powell. (Id. at 1-4). I also found that Tolen's Brady claim was procedurally barred due to his failure to raise it in state court, and that Tolen had failed to establish cause and actual prejudice to overcome the procedural default. (Id. at 4-6). The United States Court of Appeals for the Eighth Circuit denied Tolen's application for certificate of appealability and issued the mandate. [Nos. 61 and 63]. The United States Supreme Court denied Tolen's petition for certiorari on May 18, 2015. [No. 66].

         On June 16, 2015, Tolen filed with this Court his First Motion for Relief from Judgment or Order Pursuant to Rule 60(b). [No. 67]. I denied Tolen's First Motion for Relief from Judgment because he presented constitutional claims that were already presented in his habeas petition, constituting successive habeas relief without authorization from the Eighth Circuit Court of Appeals. [No. 70 at 5-6]. Additionally, I denied Tolen's request to reconsider his Brady claim under an ineffective assistance of post-conviction counsel theory, because Martinez v. Ryan, 566 U.S. 1 (2012), cannot cure a procedural default in an underlying Brady claim. Martinez can only cure a procedural default in an underlying ineffective assistance of counsel claim. The United States Court of Appeals for the Eighth Circuit denied Tolen's application for certificate of appealability and issued the mandate. [Nos. 78 and 80]. The United States Supreme Court denied Tolen's petition for certiorari on October 3, 2016. [No. 83].

         Tolen now moves a second time for reconsideration of his Brady claim. [No. 84]. He argues that his trial counsel was ineffective for failing to specifically assert a Brady violation claim, and that his post-conviction counsel was ineffective for failing to assert an ineffective assistance of counsel claim on that matter.

         LEGAL STANDARD

         A court may grant relief under Rule 60(b)(6) for “any other reason that justifies relief” when a motion is made “within a reasonable time.” Fed.R.Civ.P. 60(b)(6). “Rule 60(b) authorizes relief in only the most exceptional of cases.” Int'l Bhd. of Elec. Workers, Local Union No. 545 v. Hope Elec. Corp., 293 F.3d 409, 415 (8th Cir. 2002). A movant seeking relief under Rule 60(b)(6) is required to show “extraordinary circumstances” justifying the reopening of a final judgment. Ackermann v. United States, 340 U.S. 193, 199 (1950); Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988); id., at 873 (Rehnquist, C. J., dissenting) (“This very strict interpretation of Rule 60(b) is essential if the finality of judgments is to be preserved”). Such circumstances will rarely occur in the habeas context. Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).

         Petitioners sometimes request relief under Rule 60(b) when the motion is more properly characterized as a successive § 2254 petition. See, e.g., Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002). A state prisoner may file a second or successive motion under § 2254 only after obtaining authorization to do so from the appropriate United States Court of Appeals. 28 U.S.C. § 2244(b)(3). Where a prisoner files a Rule 60(b) motion following the dismissal of a habeas petition, the district court must determine whether the allegations in the Rule 60(b) motion in fact amount to a second or successive collateral attack under 28 U.S.C. § 2254. Boyd, 304 F.3d at 814. If the Rule 60(b) motion “is actually a second or successive habeas petition, the district court should dismiss it for failure to obtain authorization from the Court of Appeals or, in its discretion, may transfer the motion . . . to the Court of Appeals.” Id.

         A Rule 60(b) motion that merely alleges a defect in the integrity of the habeas proceedings is not a second or successive habeas petition. See Gonzalez, 545 U.S. at 535-36. A Rule 60(b) motion is also not a successive habeas petition if it “merely asserts that a previous ruling which precluded a merits determination was in error -- for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.” Id. at 532 n.4. However, a Rule 60(b) motion is a successive petition if it contains 1) an “asserted federal basis for relief” from a judgment of conviction or 2) an attack on the “federal court's previous resolution of the claim on the merits.” Id. at 530, 532. “On the merits” refers “to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. § 2254(a) and (d).” Id. at 532 n.4. When a Rule 60(b) motion presents such a claim, it must be treated as a second or successive habeas petition.

         ANALYSIS

         Tolen claims that his trial counsel was ineffective for failing to specifically make a Brady claim concerning two boxes and an audiotape that allegedly contained Tolen's “work product” and exculpatory recantations. Tolen claims his post-conviction counsel was ineffective for failing to, at Tolen's direction, make an ineffective assistance of counsel claim pertaining to the underlying Brady violation. I have not previously adjudicated Tolen's Brady claim or ineffective assistance of counsel claim on the merits. In my order denying Tolen's habeas petition, I concluded that Tolen's Brady arguments had not been exhausted before the state court. (ECF No. 47 at 6). In my order denying Tolen's first Motion for Relief from Judgment, I concluded that Tolen could not invoke Martinez to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.